Wednesday, November 19, 2008

The California Supreme Court granted (cert? discretionary review? not sure how the state's system works) review of three lawsuits challenging the gay marriage ban.

I know nothing more about California law than what I've read in conjunction with this issue, but it seems like the lawsuits have a decent legal argument. Essentially, they're arguing that this is not just an amendment to the constitution, but a change in a legal right that the constitution guaranteed. That's a subtle distinction, but an important one: ballot initiatives can accomplish the former, but not the latter.

The problem is this: even if it's a valid and sound legal argument, it will still be looked at as an attempt to thwart the "will of the people." Of course, that's pure crap -- Prop 8 was passed with 51% of the vote, and maybe 50% of the eligible voters voted in the election. So it's the will of a quarter of the people.

That attack is also crap in another way: the courts are supposed to protect vulnerable minorities from majoritarian excesses. If the 25% of the California population that's still bigoted can use a loophole to change the legal status of citizens, that's a problem. And the courts are supposed to prevent that from happening.

Imagine if this were the 1960s, and Prop 8 forbade interracial marriage. Some of the same people who are against gay marriage now were against (and probably still are, though under the radar) interracial marriage.

Of course, it took a court case to put an end to the de jure prohibition against interracial marriage (Loving v. Virginia). It will probably take another court case to end the modern version of that hatred.

The current SCOTUS isn't likely to look favorably on such a case, but luckily for the Prop 8 challenge, it won't get the chance to rule: the Prop 8 lawsuits are purely a matter of state law, and SCOTUS has no jurisdiction there (unless the challenge is that state law violates the federal constitution, but that argument isn't being made).

Sunday, November 16, 2008

Judicial elections are stupid. There, I said it. Though it may be undemocratic (small 'd') to say this, the general public has no idea what makes a qualified judge. A judicial candidate shouldn't be selected on the same criteria as are regular political candidates -- i.e., I'm for family values, I'm against gun control, etc. In fact, not so long ago, it used to be against several canons of judicial ethics for a candidate to announce publicly his position on an issue. This makes sense -- a judge shouldn't be seen by litigants or the public as having staked out a position before considering the facts and law in a given case.

Additionally, retired SCOTUS Justice O'Connor has weighed in. "There is too much special interest money and influence in state court elections," O'Connor said recently. "It endangers the public's faith in the justice system. If courts are going to stay impartial, leaders in every state need to get moving on reforms." (Thanks to AP article cited below for these quotations)

The better way to select state judges is via merit selection: a committee reviews a slate of candidates and recommends one to the governor, who appoints the judge. After a given period, say two years, the judge is up for retention (not re-election: the only effect of the vote is a decision whether the judge stays or gets the boot). If the public is sufficiently incensed about the judge's performance, he's sent packing, whereupon the governor appoints a replacement and the process continues.

This allows the benefits of judicial elections -- a democratic (again, small 'd') check on the power of the judiciary -- without the costs associated with potentially unqualified by well-funded candidates displacing experienced judges.

Institutional memory is an important asset. It takes a few years for a judge to find his groove and to get familiar with the lay of the land. A judge who has a few years under his belt is far more valuable to the bar and to the public than a newbie.

Update: SCOTUS will hear a case dealing with judicial ethics and tangentially involving judicial campaign financing. It seems that a certain West Virginia Supreme Court justice declined to recuse himself from a case in which a $50m verdict against his largest campaign donor was overturned. Really, though, what's $50 million among friends? Read more about the case, Caperton v. Massey, here and here.

When SCOTUS does hear the case, it will be interesting to hear what Justice Scalia has to say about it; you'll recall that in 2004, he faced quite a bit of criticism when he failed to recuse himself from a case in which VPOTUS Cheney's energy policy was the issue. A few weeks before argument (might have the timing wrong; it might have been months), he went duck hunting and fishing with Cheney at a private hunting camp. Sure, he didn't share the same duck blind with Cheney, but what about the fishing boat?

Oh, by the way, speaking of Scalia, this just in: it seems he spent this past weekend hunting with the author of an amicus brief in the huge Pharma case, Wyeth v. Levine(summary here), which was argued today.Um, wow. That's about all that can be said.

And another update: NYT has this article about some of the late Chief Justice Rehnquist's papers. Interesting stuff; the reason I include it in this post is because of the discussion on judicial ethics and recusal. Rehnquist faced stiff criticism for failing to recuse from a case early in his tenure as Associate Justice, then seemingly reversed course and recused himself from the consideration of US v. Nixon (yes, that one).

Friday, November 14, 2008

An interesting case from Utah. Pleasant Grove City has a park it says is dedicated to its "pioneer heritage." To celebrate that heritage, it has a number of privately-donated monuments. There's a log cabin, a Mormon religious artifact, a monument to firefighters who died on Sept. 11 (an Eagle Scout's public service project -- not sure how that's related to pioneer heritage, but whatever), and a monument to the Ten Commandments.

A weird (no really, it's weird) religious group called Summum wanted to put its own monument up in the park, right next to the 10 Commandments monument. Summum believes that before Moses came down the mountain with the Commandments, he received Seven Aphorisms from God. Apparently the Israelites weren't ready, so he hid the Aphorisms away and went to get the Commandments. But the Aphorisms have been passed down through history, and now they've appeared in Utah.

Anyway, the city, predictably, said "thanks, but no thanks" to that monument. Summum sued, and eventually won at the Court of Appeals. The city petitioned the Court for certiorari, and got it.

Oral arguments were a couple of days ago. You can read about them here and here.

The case boils down to this: if the Eagles monument and the Summum monument are private speech, then the city is engaging in viewpoint discrimination. If the city has “adopted” the monuments in the park, then the monuments are government speech — and government can say nearly whatever it wants. The problem with that is that what it’s saying here is “we think the 10 commandments are better than the seven aphorisms.” That constitutes an official statement of preference for one religion over another. That’s an establishment clause violation. There wasn’t an establishment question before the Court, but there was an establishment issue in earlier proceedings (it just wasn’t appealed). Procedurally it’s complicated, but I think the case will (should) get remanded for additional factfinding on the question whether the government speech (if that’s what it is) is itself a violation of the establishment clause.

I get the knee-jerk reaction, but why are prosecutors really mad at this guy? If you go from the premise that those who he clears with DNA evidence are actually innocent, then why in the world would prosecutors want to keep them in jail? Won't the public have more confidence in those that the DA convicts? What is wrong with this picture?

I think Michelle Rhee's daughters go to a DC public school. Surely the Obamas cannot be expected to throw their daughters into a poor academic environment (or, infinitely worse, a dangerous environment), but if there's a school good enough for the Chancellor's daughters, might that school also be worth considering? Imagine the message of support it would send to teachers, parents, and students in the DC public schools!

Sadly, this probably isn't an option. Real life isn't the West Wing, and there are too many risks and variables associated with gambling on a public school.

What a commentary on the sorry state of American education.

PS -- thanks to Amy for the correction re: number of Rhee's daughters.

Thursday, November 13, 2008

Today's NYT has a good article about Michelle Rhee's efforts to revive DC's flagging school system. It focuses largely on her plan to phase out the tenure system. The quotation below sums up the intellectually honest reasons for tenure (in my view, the real reasons are far less noble):

Teachers first won tenure rights across much of the United States early in the 20th century as a safeguard against patronage firings in big cities and interference by narrow-minded school boards in small towns, said Jeffrey Mirel, a professor of history and education at the University of Michigan.

“And the historical rationale remains good,” Dr. Mirel said, pointing to the case of a renowned high school biology teacher in Kansas who was forced to retire nine years ago because he refused to teach creationism.

“Without tenure,” Dr. Mirel said, “teachers can still face arbitrary firing because of religious views, or simply because of the highly politicized nature of American society.”

These are important considerations. But they're not arguments for tenure. They're really arguments for greater first amendment protections for teachers and other public employees.

The SCOTUS has not been kind to public employees in this regard. Most recently, in Garcetti v. Ceballos (2006) (free summary here), the Court held that an employee could be fired for disparaging comments he made, largely because the subject matter of those comments was in the scope of his job description.

Public employees should be protected from arbitrary dismissal when they speak out on issues relating to their jobs. This is because the public has a right to know insiders' views with respect to the operations of the system (and the physical plants, and the cafeteria food, etc.).

Address the legitimate union concerns by granting greater first amendment protections against aribtrary firings. Create causes of action that will allow for damage awards when a teacher is fired, e.g., for refusing to teach Creationism in Kansas. But don't just make it automatic that a teacher can't get fired.

Rhee is right: schools need to be able to get rid of crappy teachers (and, much more importantly, to reward those who are good at their jobs). Merit pay is the only way to do this.

Yes, Darling-Hammond is an ed school professor who talks in nuanced, academic terms--not scripted talking points (see her debate here). Yes, she was among the first and most prominent critics of Teach For America--and still favors a more intensive, residency-based approach to training new teachers.

But she also has authored a recent study that acknowledged T.F.A. teachers were in some ways better than traditional teachers. And she has helped start several charter schools in California. Darling-Hammond says there's no real daylight between her positions and Obama's policy proposals, and I haven't seen any convincing evidence to contradict that claim.

So what's going on then? Part of it is just a knee-jerk response against someone who dared criticize T.F.A., the reformistas' most cherished accomplishment to date. Another part of it may be the desire for a younger, fresher name picked from their own ranks--D.C. superintendent Michelle Rhee, or New Leaders founder Jon Schnur.

Wahoo! In addition to the changes he'll likely get to make on SCOTUS (see also here), Obama will have a number of appointments to make on the various circuit courts of appeals. Of note for North Carolinians and Virginians:

The most striking change could come soon after Obama takes office, with the selection of nominees to fill four existing vacancies on the staunchly conservative, 15-judge 4th Circuit.

Leading off the agenda: dealing with climate change. Obama can start by reversing the regulations the Bush administration is working on as we speak to allow drilling in Utah near Arches and Canyonlands (and Moab, I might add!). He can also reverse the block of California's emissions experimentation. But these are largely symbolic. Doing something about climate change is going to take massive, organized, cooperative global efforts. Obama knows this: the recent Newsweek wrap-up of his campaign, in a vignette designed to highlight his frustrations with the facile nature of the campaign process, illustrated his views on climate change quite well:

So when Brian Williams is asking me about what's a personal thing that you've done [that's green], and I say, you know, 'Well, I planted a bunch of trees.' And he says, 'I'm talking about personal.' What I'm thinking in my head is, 'Well, the truth is, Brian, we can't solve global warming because I f–––ing changed light bulbs in my house. It's because of something collective'."

So Obama knows that simply putting some compact flourescents in your sockets, while personally virtuous (and while you're there, check out the rather scary Cheney picture), won't cut it on a large scale. So what will?

"To be effective, this is only possible at the level of international cooperation -- far more difficult to achieve than any technological breakthrough. There is a rendezvous next year in Copenhagen in late November which the entire world of climate expertise is preparing itself for and which is considered by many in the field to be our best and possibly last hope of addressing the problem before it runs away from us. It is the truly global successor to Kyoto, known in the trade as COP (Conference of Parties) 15. There is a case to be made that it will be one of the most important international meetings ever convened. If it does not result in practical, radical measures, the fight to control our future could well be lost. Every nation on the planet will be represented. The general feeling is that the conference cannot be allowed to fail. And it cannot succeed without the leadership of the United States. There are fears that Mr. Obama will move too cautiously on climate change for political reasons, and that would be a tragic error. As Mr. Schellnhuber says, 'If he were prepared to come in person to Copenhagen and make a speech, a bold commitment, similar to what Reagan did in Reykjavik, he would become a hero of the planet, for good.'"

Sunday, November 9, 2008

Kudos to the Times for covering this travesty. Check out the idiot quote from the FL State Sen. Victor Crist: Defenders' offices could increase efficiency by, for example, carefully choosing which cases require depositions and other time-consuming actions."

Basically, this guy is saying that a lawyer should not focus zealous advocacy for an individual client, but rather should spread his resources so that each client gets less. That goes against the spirit of Gideon, and it also goes against the canons of professional responsibility. States have a duty to provide competent, adequate representation to every indigent defendant they choose to prosecute.

This Times artile is actually quite timely: SCOTUS will be soon hear a case on certiorari to the Supreme Court of Vermont dealing with a related issue. The Vermont court vacated a conviction of a defendant who sat in jail for three years between arrest and trial, largely because his court-appointed lawyers were so overworked they couldn't address his case.

All law school types can check out the opinion here; all non-law school types can read this blog about the case. More to follow when they actually take argument.

John Podesta (former COS to Clinton) indicated that Obama might consider "using his executive authority to change stem cell and oil-drilling policies without waiting for congressional action." This means that we could start to reverse the Bush administration's ostrich-like posture toward knowledge in general and science in particular. Doing this in the first few days (hell, he could have the EO drafted tomorrow, ready to sign on Day 1) would send a clear signal to the country that we're really going to shift gears.

See also this WSJ piece, which notes that "[r]olling back executive orders issued by the Bush administration could give Mr. Obama a fast way to put his mark on policy making after he takes office, as past presidents have. Other Bush-era executive orders that Mr. Obama could reverse include a ban on federal aid to family-planning organizations that counsel women on abortion, and a decision in December that restricts California in regulating greenhouse-gas emissions from cars."

In addition to being a powerful signal of "change," addressing Bush's boneheaded obstruction of California's efforts to clean up the environment could actually bring material change to the country. If "conservatives" really believed in letting individual states act as "laboratories for democracy," they would not have stood in the way of efforts like California's. Perhaps Cali will begin to show some progress, which could stir up some popular support for Obama's plan to create 5m new "green jobs." The Center for American Progress thinks this is very doable.

Thomas Friedman has a new op-ed in the Times dealing with how to leverage the astounding good will toward Obama harbored by much of the rest of the world. I especially like the part about how difficult it will be for radical Islamic leaders to get their throngs to chant "Death to Barack Hussein Obama." There's definitely an element of cognitive dissonance there. I love it.

Saturday, November 8, 2008

The WSJ has an interesting article about Congressman Paul Ryan, R-Wisc., endorsing him for House Minority Leader (he would replace John Boehner, R-Ohio). Ryan, the Journal points out, has won re-election four times in a heavily Democratic part of Wisconsin (it went for Obama 53%-46%). Ryan is something of a principled free-market Conservative of the old school (i.e., Burke, not Bush). I think it would be a nice change to have an opposition voice that isn't wedded to partisan bromides (like Boehner is). Imagine the change in political discourse and the positive contributions to government that could be made by having someone intelligent and thoughtful contribute to the debate.

Of course, I've said that the Republicans shouldn't get a say in who Obama picks as his Chief of Staff; it follows that the Democrats shouldn't have a say in the GOP pick for Minority Leader. And the Majority Leader doesn't exactly follow this prescription for thoughtful debate.

It's also one of the jobs of the party leaders in the House and Senate to rally the troops behind the party. But the Majority / Minority Leaders are distinct from the Whip positions, and America has declared reather emphatically that it's ready for a different kind of politics. Maybe Ryan fits that bill.

The ACLU has published a list of recommendations for immediate executive attention following Obama's oath on Jan. 20. Some of this stuff seems pretty sensible. For example, the group recommends an executive order forbidding torture. Some seems potentially problematic: the group calls for a moratorium on executions of death sentences until racial disparities in the system are addressed. It's not clear what this would do. Yes, there are glaring problems in the system. Yes, African Americans are far more likely to be sentenced to death than are Caucasians. But those who are currently scheduled for federal execution were duly tried and convicted of crimes Congress has chosen to punish with sentences of death. It's not equitable to stop all pending executions. Furthermore, it would be political suicide. Can you imagine what John Boehner or Rush Limbaugh would say if Obama did this? Of course, those mouthpieces don't have a veto over Obama's policies. But Obama still must consider the political realities. Luckily, he's a saavy Chicago pol, and he's got another saavy Chicago pol as Chief of Staff. I'm betting Obama won't be making any rash judgments.

That said, there are lots of very reasonable recommendations in the ACLU's list. Check it out.

More on the new COS. Rahmbo looks to be just the sort of pragmatic streetfighter the POTUS will need to get things done. Emanuel's advice: "Do what you got elected to do." I.e., don't get led down the rabbit hole of orthodox liberal policies.

Barney Frank wants to slash Defense spending by 25%. Charles Rangel wants to bring back the draft. John Conyers, who has called for slavery reparations, is also sympathetic to Europeans who want to indict Bush administration officials for war crimes. And Henry Waxman is angling for steep energy taxes to combat global warming.

Most of this stuff is poison. Sure, defense spending is way too bloated. But it's the democratic third rail -- touch it, you die. Bringing back the draft? Ideologically, it's a great idea. But unless you want to leave office in 2012, don't even think about it. Indicting Bush for war crimes? Bloodlust is fun and all, but don't get stuck in this orgy of recriminations. You were elected to change things. We've got bigger fish to fry. The Waxman thing, though -- that's worth some consideration. Global warming is going to take bold, decisive leadership.

The point is this: Emanuel knows the dangers here. He knows what can be done, and what will be political suicide. Having seen the mistakes of the Clinton WH in the early 90s, he's in a great position to steer the Obama WH away from similar screwups.

Friday, November 7, 2008

Mr. Emanuel, an Obama friend from Chicago's insular political world, brings to the post a hard-charging, sometimes profane voice that contrasts sharply with Mr. Obama's unflappable demeanor. He spent much of the Clinton administration inside the White House political office, shaping message and policy with a keen eye on its electoral impact.

I think this will prove to be a really good pick. Obama needs someone who is not afraid to get bloodied and draw a little blood. The 133m people who voted in this election ( ~ 67m for Obama ) are expecting big things. Obama has been right to tamp down expectations, but he's also got to make some quick progress when he gets there. Obama will also need to navigate an inflated Democratic majority in both chambers, as well as deal with GOP opposition on major policy priorities like health care reform and environmental protection. Emanuel's experience in the House leadership should prove rather valuable in that regard.

Some are saying that Emanuel is an ironic pick for a president-elect who ran on a message of post-partisanship. They have a point. But while Emanuel has a reputation for no-holds-barred politics, his boss does not. And Emanuel will be taking direction from Obama, not the other way around. The two will balance each other quite nicely. Emanuel will be perfect for the demands of this job: serving as muscle for his boss's agenda.

Plus, it doesn't hurt that this only strengthens the West Wing analogy: Rahm = Josh Lyman.

This is the kind of low-hanging fruit that should be a no-brainer. If we don't do relatively easy things like this, how in the world can we expect to accomplish the really big tasks in the environmental realm? Good for Bloomberg for changing the incentives. Just like he did with the taxis.

Saturday, November 1, 2008

The Wall Street Journal's Law Blog has picked up on the latest Palin Constitutional "interpretation." Palin asserts that: “If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

There are more problems with this statement than warrant discussion in a non-academic context. Suffice it to say this:

The First Amendment is in no way implicated here. The First Amendment protects private citizens (which describes, and will continue after Nov. 4 to describe, Sarah Palin) from government suppression of speech. Note -- *government* suppression of speech. If Palin wants to temper her idiotic comments because the media pick up on them, she's entitled to do so, and from McCain's perspective, she's probably wise to do so. (In fact, one is reminded of the Twain quotation: Better to keep your mouth closed and be thought a fool than to open it and remove all doubt.). But the media are not infringing on her First Amendment rights. That claim makes absolutely no sense. A statement like this is an appeal to the misinformed.

Palin said that when the media call her incessant comments about Ayers and Wright "going negative," they are chilling her speech. She made no comment about being libeled or slandered. She only whined that the "mainstream media" and "Washington elitism" have "attacked" her by referring to her statements as "going negative." Palin has an incredibly warped view of that the First Amendment is all about.

The First Amendment does not protect Palin -- a would-be government official -- from this sort of legitimate media statement. See, e.g., New York Times v. Sullivan. If she can't handle criticism of her public statements, how can she possibly have the strength of character to be VPOTUS? This isn't Alabama in the 60s. The media are supposed to perform a "watchdog" function and keep us informed of what our leaders and putitive leaders are doing and saying.

This is probably a good step, but take it with a grain of salt: when Google entered China, it agreed to let the Chinese government control all sorts of user access. That, I submit, is not consistent with the company's motto: Don't be evil. That said, it's good that they're doing this.